Tuesday, May 14, 2019
The Indiana Lawyer has a story about pending bar charges that allege an attorney committed serious ethical violations in representing a school that had been apprised of allegations of sexual misconduct against a basketball coach.
In late November 2015, the father of a 15-year old female Park Tudor student (“the child”), discovered an image of male genitalia on the child’s cell phone. The child falsely informed her father that the image came from another student.
On or about December 13, 2015, the father, monitoring the child’s laptop computer, discovered the child had exchanged sexually graphic text messages, images and videos with a person.
The father was able determine that the person with whom the child had exchanged the texts, images and videos, was Kyle Cox, the boys’ varsity basketball coach, assistant athletic director, and a chemistry teacher at Park Tudor.
The attorney and Cox were close friends and among the allegations is that conflict of interest.
Respondent attended Cox’s wedding, played golf with Cox, and attended Park Tudor sporting events with Cox. Cox’s wife was also a personal trainer for Respondent and Respondent’s wife.
The father hired an attorney (Dassow) and a meeting took place that included the Head of Schools at Park Tudor Matthew Miller
At the time of the meeting, Respondent did not contact law enforcement, the Department of Child Services, nor did he advise Miller or Park Tudor do so.
Respondent requested the father leave the laptop computer and printouts with Respondent.
In compliance with Respondent’s request, father gave the laptop and printouts to the Respondent.
At no time during the meeting with the father or Dassow did the Respondent discuss contacting law enforcement or reporting the matter to the Department of Child Services (“DCS”).
The meeting with Respondent, Miller, Dassow and the father lasted approximately 1 hour.
Rather than report
On December 16, 2015, Respondent provided the child’s laptop to an IT specialist employed by his law firm and requested that the specialist make copies of the files containing the sexually graphic images and texts.
The IT specialist had the images put on a thumb drive.
Rather than report redux, the attorney proposed a confidential settlement
Among other things, the settlement agreement included a confidentiality clause which provided that neither the child, nor her parents, would disclose the terms of the agreement except to “authorized individuals,” which included, Respondent and four specified administrators at Park Tudor.
The police then sought the evidence
Respondent did not initially acknowledge the existence of copies of the files from the child’s computer, or that they were in his possession, and Miller assertied repeatedly that “they weren’t there” or something similar.
After meeting with Miller, Respondent agreed to provide the task force with the copies he possessed but wanted to delay providing them to the next day.
Miller was interviewed by police and committed suicide two days later.
The school reached a non-prosecution agreement in the criminal case.
Cox was convicted and is serving a 14-year prison term.
The attorney is charged with failure to report the abuse in violation of criminal law, possession of child pornography and conflict of interest.
The charges allege (as I read the complaint) that the attorney failed to report the abuse, not that he failed to advise the school of its duty in that regard.
Does the Indiana reporting obligation trump the attorney-client privilege? (Mike Frisch)